S.278 CrPC | Witness Can't Be Allowed To Seek Correction In Evidence After He Signs Deposition Sheet: Orissa High Court

"The object of the reading over prescribed by this section, is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said. The section is not intended to permit a witness to resile from his statement in the name of correction. The object underlying section 278 of the Code is to obtain an accurate record of what a witness really means to say and to give him an opportunity of correcting his evidence taken down by the Court, if any."

The Court however clarified that if any new fact is there with the witness which he has inadvertently left out, his counsel can file an application for recall to depose only those aspects.

Factual Background:

The petitioner was facing trial for commission of an offence under Section 138 of the Negotiable Instrument Act, wherein the he examined himself as D.W.1. He was examined by his own counsel in examination in-chief and then he was cross-examined by the counsel for the complainant-opposite party. After the cross-examination was over, the evidence was read over to the petitioner and explained and thereafter, he signed the deposition sheet on each page.

However, after some days the counsel for the petitioner filed a petition in the Trial Court indicating therein that some questions were put to the petitioner by the counsel for the complainant and correct answers were given but the same were wrongly recorded by the Court and therefore, a prayer was made to correct the recording of the evidence.

After hearing both the parties, the Trial Court held that after recording of evidence, the same was read over and explained to D.W.1 and after finding it to be true and correct, he put his signature and therefore, the prayer to make changes in the evidence cannot be done without bringing D.W.1 (petitioner) to the dock and accordingly, the petition was rejected.

Contentions:

Mr. Gyanaloka Mohanty, counsel for the petitioner, contended that after receipt of the certified copy of the deposition, it came to the notice of the counsel for the accused (petitioner) about the wrong recording made by the Court and immediately the petition was filed for correcting the same.

It was submitted further that the petitioner is a graduate and it was his duty to immediately point out the same to the Trial Court while putting his signature but he could not verify the evidence thoroughly when he put his signature and for his laches, he should not be deprived of the opportunity in bringing it to the notice of the Court regarding wrong recording of his evidence which has far reaching consequences.

Court's Observations:

The Court noted that Section 278, Cr.P.C. deals with procedure with regard to the evidence when it is completed and it states, inter alia, that as the evidence of each witness taken under section 275 or section 276 of Cr.P.C. is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected and it is further provided that if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Officer may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

The Bench observed that where the certificate of the Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct, the Court is bound to accept this as correct under Section 80 of the Evidence Act until it is proved to be untrue. Before a deposition is closed, a witness is given an opportunity of explaining and correcting any contradictions which it may contain and the statement which the witness finally declares to be the true one and that statement only must be taken to be the statement which the witness intended to make.

It was further held that all the Courts whether civil or criminal have obligation to read over the deposition to the witness before he is called upon to affix the signature. Having regard for the statutory mandate, the Court observed,

"…after his cross-examination is over, he was asked to go through his deposition sheet and put his signature on each page of the deposition sheet, he never raised any objection about of any wrong recording. The contention of the learned counsel for the petitioner that everything was done in a hurried manner and the petitioner could not get time to go through the evidence minutely and therefore, the evidence should be corrected is not acceptable. The correction, which has been sought for in the evidence is completely different than what evidence has been recorded. Therefore, it would be too risky to allow further examination of the petitioner as D.W.1 and permit him to make correction in the evidence already recorded."

Before concluding, however, the Court made it clear that if any new fact is there with the petitioner to be deposed to prove his case which he has inadvertently left out, his counsel can file an application for recall of petitioner to depose only those aspects and in the recall petition, specific questions likely to be put to D.W.1 should be mentioned and the same shall be considered by the Trial Court and, if it is found to be relevant, just and proper.

Accordingly, the revision petition was dismissed.

Case Title: Siddhachit Roy v. Rabindra Kumar Mallick

Case No.: CRLREV No. 40 of 2022

Order Dated: 6^th September 2022

Coram: Sangam Kumar Sahoo, J.

Counsel for the Petitioner: Mr. Gyanaloka Mohanty, Advocate

Counsel for the Respondent: None

Citation: 2022 LiveLaw (Ori) 138

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